조례의 사법적 통제에 관한 소고

Abstract

This study looks at the nature of ordinance, legal issues and judicial control type on ordinance, which is the core of this discussion. State administration is implemented with legislation. Likewise, self-governing administration is implemented with ordinance, which possesses quasi-legal characteristic and binding force. As its grounds, the Constitution said local governments shall deal with administrative matters within the limit of Acts and subordinate statutes (Constitution Article 117-1) and Local Autonomy Act said that local governments may establish municipal ordinances concerning their affairs within the scope of statutes: Provided, That in order for such local governments to prescribe matters concerning the restriction on rights of residents, the imposition of obligations on residents, or penalties, they shall have the authority delegated by Acts (Local Autonomy Act Article 22). However, these days, unlike the legal order which requires juristic ground in accordance with practical measures of welfare administration and proactive administration (Constitution Article 75 and Article 95) it is considered that comprehensive delegation and/or general delegation of power rather than delegation of concrete legislation is enough (judicial precedent). In particular, violating the principle of statutory reservation and low predominance principle in accordance with ‘within the scope of legislation’ and ‘existence of delegation laws,’ which are the common examination standards of making municipal ordinance, influence the effectiveness of ordinance as well. Therefore, it is significant to review a series of cases about judicial control on ordinance. In a regard that illegality and invalidity of ordinance is determined in accordance with judicial judgment, this study will review them focusing on the agency litigation and the appeal litigation which look for the litigation for affirmation on nullity of ordinance, and adjudication on a constitutional complaint of which the ground is direct violation in people’s fundamental human rights by grouping them into abstract norm control, indirect norm control and concrete norm control etc. by control method.